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Class Action Status, Settlement Granted in Latest Case of H-2b Visa Abuse, This Time in PA


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A lawsuit involving 94 H-2b visa holders who worked for an eastern Pennsylvania landscaping company has reached conditional certification of the settlement class, as well as a settlement.  According to the lead plaintiff, Rogelio Ortega Hernandez, Earth Care Inc. and its owners Scott and Kim Risbon failed to properly pay their temporary workforce, mostly made up of H-2b workers, and forced them to pay for travel expenses out of pocket.  The lawsuit is yet another case of the controversial visa program being used to exploit foreign labor.

U.S. Magistrate Judge Elizabeth T. Hey announced that the two sides have entered into settlement negotiations and reached an agreement, although it is unclear how many of the 94 workers will opt-in to the class settlement.  

According to Hernandez, who worked for the company from 2010-2014, Earth Care, Inc. failed to properly increases wage rates.  In the lawsuit, Hernandez stated that he and his fellow Mexican workers were not paid the legally mandated rate and that employees had fees deducted to cover travel expenses between Mexico and Philadelphia.  Under the H-2b program, such expenses are supposed to be paid by the employer.

In her ruling, Judge Hey said:

Based on the allegations in the Amended Complaint and those outlined in the proposed settlement agreement, I conclude that preliminary certification of the collective action is appropriate.  The 94 individuals in the proposed collective action/settlement class are similarly situated. Each of the class members was a seasonal H-2b employee of 4 Earth Care in 2013 and/or 2014. Based on the allegations, all were paid less than the minimum wage required by the H2-B visa program.  Based on my review of the pleadings and the motion, the agreement is the most expeditious, efficient, and fair means of resolving the claims.  I will conditionally certify the collective action and settlement class. Additionally, because I conclude that the settlement is fair and reasonable, I will preliminarily approve the settlement.  Once the period for submitting opt-in forms by the members who return to work for Earth Care has expired, the parties may seek final certification and approval. In doing so, counsel shall specifically address the relevant factors cited in this memorandum.”

Following the period for class members to opt-in, the parties will seek final certification and approval of the settlement.  


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